Connor v. Hardwick

53 Kan. 60

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

HortON, C. J.:

*• lowed/01'

2l Sence-finding. There are six allegations of error discussed in the briefs. The principal ones are: That the petition in the case fails to state any cause of action; that W. P. Hardwick, the assignee, never had any actual possession of the property in dispute prior to the seizure thereof by J. W. Connor, the sheriff; and that the verdict of the jury is excessive. It is insisted that the trial court committed error in permitting the introduction of any evidence, upon the ground that the mortgage shows that the mortgagee was not entitled to possession, and that if he took possession, as he alleges, it was in violation of the agreement under which he had accepted the mortgage. It appears from the stipulations of the mortgage that the possession of J. C. Hite, a third person, was really for the benefit of Hardwick, the assignee. He was to sell the goods and deposit 80 per cent, in the bank for the benefit of the notes secured, and was to use the other 20 per cent, in the purchase of staple groceries to keep up the stock, so that the rest of the stock could be sold to a better advantage. (Frankhouser v. Ellett, 22 Kas. 127; Whitson v. Griffis, 39 id. 211.) The mortgage also contained a provision permitting Hardwick to take possession of the property if default were made in the payment, or any part thereof, or if he deemed himself unsafe or insecure. (Werner v. Bergman, 28 Kas. 60.) The petition specifically alleges that on the 13th day of June, 1889, there was default in the payment of a portion of the debt secured thereby, and that the mortgagee, deeming himself unsafe and insecure, upon the 14th day of June, 1889, took possession of all of the property under and by virtue of the mortgage, and that he continuously held possession thereof until the 21st day of June, 1889, at which time the sheriff seized the same. (Isenberg v. Fansler, 36 Kas. 402.) There was ample evidence offered in the case tending to show that Hardwick took actual possession of the property i u •/ on the 14th day of June, 1889, and that J. C. Hite was in possession thereof for him and as his agent.

The verdict of the jury placing the value of the goods at $1,850 was high, but there was some evidence to sustain it. D. jD. Hale, who had at one time been engaged in buying and selling goods, was one of the appraisers at the time the goods in controversy was seized by the sheriff. He appraised the goods at a value he thought they would bring at a forced sale by the sheriff. His valuation was about $1,500. A. J. Truesdale, another appraiser of the goods at the time the sheriff seized the same, fixed their value at $1,500, or close to that sum. At the time of the trial he was engaged in the hardware and grocery business. He also appraised the stock of goods at the time Hardwick, the assignee, filed his inventory. When he made the appraisement for the assignee, the cost mark was given to him; but the last time he valued the goods he did so upon his own judgment, endeavoring to fix a value that the goods would bring under the hammer. This value was about 40 per cent, less than the cost mark as given to him. Hardwick showed by his evidence that the greater portion of the goods were the same which he had sold to Stow & Hite ; that while he had the goods in his possession as assignee, he was engaged in selling them at retail, which was only about six months before they were seized. He testified :

“Q,ues. Now, wbat was the value of the goods taken by the sheriff? Ans. I thought the value was $2,000.

“Q. You say the value of the goods was $2,000? A. Yes, sir.”

Under the circumstances, we do not think there was any error in receiving the evidence of Hardwick and Truesdale. In any event, no proper objection was made to the competency of Truesdale as a witness. Considering all of the evidence before the jury and trial court, as a remittitur was allowed fixing the value of the goods at $1,614.05, we are unwilling to reverse the case upon the ground of excessive value.

' power m m-Upon the trial, the contention of defendant below was that Hardwick, as assignee, fully exhausted his authority when he made the sale of the goods to Stow & Hite and accepted notes with sureties thereon in payment, and that he acted outside of his power or duty, as assignee, in accepting the chattel mortgage and in attempting to enforce the same; also, that the goods were not the property of Stow & Hite at the time the chattel mortgage was executed, as the firm had been dissolved and gone out of business, and that the chattel mortgage was taken to secure other indebtedness than that due from Stow & Hite to Hardwick, as assignee. Stow & Hite were primarily liable upon the notes executed by them. To preserve the property of the estate, Hard-wick, the assignee, had full authority to accept the chattel mortgage upon their goods to secure the payment of their notes. The jury were the judges of the weight and credibility of the witnesses, and upon their finding we must, of course, hold that the goods embraced in the mortgage belonged to Stow & Hite at the date of the mortgage, and that at that time the firm had not been dissolved. We must also hold that the chattel mortgage was taken to secure the actual indebtedness due from Stow & Hite to Hardwick, not any other or outside indebtedness.

gage, validity We have examined the other errors alleged, but do not deem them sufficiently prejudicial to cause any reversal of the judgment, nor do we think it necessary to make any comments thereon. The debt owing to Hardwick, the assignee, was a valid subsisting debt, and one that Stow So Hite were justly bound to pay. The mortgage was not given to secure more than the actual indebtedness. Stow & Hite had the right to prefer to pay Hardwick, and he had the right to seek a preference, even though the preference would leave the other creditors nothing. Upon the general finding of the jury, all doubtful questions of fact must be resolved in favor of the successful party. As the case is presented to us, Hardwick is in the condition of a vigilant creditor, who secured an honest claim in a lawful manner before any levies were made by other creditors. We perceive no good reason why his chattel mortgage should be set aside, or the subsequent levies of the creditors be regarded as prior or better liens.

The judgment will be affirmed.

All the Justices concurring.